Curtis and Percy & Anor - [2018] FamCA 221

FAMILY COURT OF AUSTRALIA

CURTIS & PERCY AND ANOR

[2018] FamCA 221

FAMILY LAW – CHILDREN – Interim – Where the Department of Families and Communities (NSW) have intervened in the proceedings – Where the children are currently in foster care – Where the father seeks an order that the children be returned to his care – Where the Court cannot be satisfied that returning the children to the care of the father on an interim basis would not expose them to the unacceptable risk of physical harm and exposure to violence – Order that the Minister for Families and Community Services have parental responsibility for the children – Order that the children spend time with each parent as arranged and supervised by the Minister for Families and Community Services

FAMILY LAW – CHILDREN – Where the father seeks an order that the independent children’s lawyer be discharged – Where the father seeks an order for the removal of the single expert psychiatrist – Applications dismissed

Children and Young Persons (Care and Protection) Act 1998 (NSW)
Family Law Act 1975 (Cth)

Aldridge & Keaton (2009) FLC 93-421
Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bondai & Bretton (No 2) [2010] FamCA 1237
Bondelmonte & Bondelmonte (2016) 259 CLR 662
Briginshaw v Briginshaw (1938) 60 CLR 336
Donnell & Dovey (2010) FLC 93-428
Goode & Goode (2006) FLC 93-286
Johnson & Johnson (2007) FamCA 229
M and M (1988) 166 CLR 69
Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638
Marvel & Marvel (No.2) (2010) 43 Fam LR 348
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Newport & Newport [2016] FamCA 1066
Potts & Bims [2007] FamCA 394
SCVG & KLD (2014) FLC 93–582
Valentine & Lacerra and Anor (2013) FLC 93-359

APPLICANT:

Mr Curtis

RESPONDENT:

Ms Percy

INTERVENOR:

The Secretary, Department of Family and Community Services (NSW)

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW
Lismore Family Law

FILE NUMBER:

LEC

199

2008

DATE DELIVERED:

16 March 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

13 March 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Donaghy

SOLICITOR FOR THE RESPONDENT:

Ms Ekanayake

COUNSEL FOR THE INTERVENOR:

Ms Neville

SOLICITOR FOR THE INTERVENOR:

Crown Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Wilkin

Order

Paragraphs 2, 3 and 4 of the Application in a Case filed by the father on 9 March 2018 be dismissed.
All previous parenting orders be discharged.
Paragraph 15 of the Order made by this Honourable Court on 17 January 2018 be discharged.
The father attend upon Dr B to be psychiatrically assessed at 10.00 am on 11 April 2018 or at any other reasonable time as he may be advised by the independent children’s lawyer.
Until further order the Minister for Families and Community Services (NSW) have parental responsibility for the children C born … 2013 and D born … 2015 and live as directed by the Secretary,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Curtis and Percy & Anor

Details

AGLC: Curtis and Percy & Anor [2018] FamCA 221
Case: [2018] FamCA 221
Decision Date: 16 March 2018

CaseChat Overview and Summary

In *Curtis and Percy & Anor*, the father sought interim orders for the return of the children to his care. The Department of Families and Communities (NSW) had intervened in the proceedings, and the children were residing in foster care. The father also sought the discharge of the independent children's lawyer and the removal of the single expert psychiatrist appointed to the proceedings.

The primary legal issue before the Court was whether it could be satisfied that returning the children to the father's care on an interim basis would not expose them to an unacceptable risk of physical harm and exposure to violence. Subsidiary issues concerned the father's applications regarding the independent children's lawyer and the expert psychiatrist.

His Honour Carew J found that the Court could not be satisfied that the children would not be exposed to unacceptable risk if returned to the father's interim care. Consequently, the Court made orders that the Minister for Families and Community Services have parental responsibility for the children. The Court further ordered that the children spend time with each parent as arranged and supervised by the Minister for Families and Community Services. The father's applications for the discharge of the independent children's lawyer and the removal of the single expert psychiatrist were dismissed.

Orders